rights-in-criminal-law

What are Your Rights under Criminal Law?

Thanks to TV shows and pop culture, many people believe they understand how the criminal justice system works. Police shows, procedural dramas and legal adaptations tend to create a false sense of familiarity with the criminal justice system in the average person. But while loose cannon cops and lawyers who bend the rules make good television fodder, they have very little in common with the realities of police-work and legal professionalism. If you find yourself caught within the criminal justice system, it is important to remember that you have rights.

Arrest

When being arrested, there are three procedural steps that officers are required to follow. The officer must tell you that you are under arrest and briefly explain why, and you must either voluntarily surrender to the officer or you will be taken into custody through force. Police in Queensland do not have to “read you your rights”, and though you do have the right to remain silent, you are still required to inform the arresting officer of your name and address in order to avoid additional charges. Once arrested, you will escorted by the arresting officer to a police station or watch-house to be processed and await court or given bail.

Warrants

The police are not required to have a warrant in order to arrest you. If they have a reasonable suspicion that you are breaking the law, have broken the law, or are about to break the law, they have the power to arrest you as a reasonable necessity, because of the type or seriousness of the offence, or in order to:

  • stop you from breaking more laws;
  • discover your identity;
  • ensure a court appearance;
  • obtain or retain evidence;
  • prevent the creation or destruction of evidence;
  • prevent witness harassment or interference;
  • protect your safety and the safety of others;
  • prevent your escape; or
  • hold you for questioning.

The threshold for demonstrating reasonable necessity is generally low and the police will likely be allowed to arrest you without a warrant. It is in your best interests to calmly comply, ask for a lawyer as soon as possible, and remain silent except for providing your name and address, until your lawyer arrives.

What Are My Rights?

You have the right to remain silent and wait for the arrival of your lawyer. You cannot be formally interviewed until the police inform you that you have a right to a lawyer, a family member, or friend. Importantly, you must remember that the police are not allowed to coerce a confession out of you by making false promises or threats. As mentioned above, the police must inform you that you are being arrested and explain to you why.

Additionally, you have the right to go to court for a bail application at the earliest reasonable opportunity, and if you are not taken straight to court, you have the right to ask the police for bail. Remember that without an arrest you do have the right to refuse a request to come to the police station, but be careful to handle the situation calmly and respectfully or else risk an actual arrest or additional charges.

Being Arrested for Questioning

When the police have a reasonable suspicion that you have committed an indictable offence, they are able to detain you for a reasonable amount of time in order to conduct an investigation and/or question you about the offence. Police may detain you for up to eight hours, but can only question you for four hours out of the eight. If they want to keep you longer, the police must petition a magistrate or justice of the peace to question you for a further period. During this time period, you still have the right to remain silent after sharing your name and address.

‘Life’ Sentences

‘Life’ Sentences

Recent commentary on sentencing principles in Queensland have seen public calls for ‘maximum sentences’ for those convicted of murder or manslaughter where the victim is a child. This reflects a naivety and ignorance of current laws and Queensland sentencing principles.

A ‘life’ sentence in Queensland may be imposed by the courts for people convicted of one of a number of offences, including manslaughter, rape or burglary just to name a few. Any person convicted of murder must be sentenced to life imprisonment by the courts.

An offender sentenced to life imprisonment is sentenced to imprisonment until the day they die. The sentence expires only upon the offender’s death. A person sentenced to life will be eligible to apply for parole after a set period of time, often 20 years, however it can be longer. However, it is important to note that simply because someone is eligible to apply for parole does not mean that they will be successful in their application for parole.

Obviously, a number of factors are considered in determining parole applications, especially where the offender has been sentence to life imprisonment. The parole board considers factors such as the nature of the original offence and the safety of the public before releasing a person to parole.

Eroding the sentencing discretion of our learned judiciary by imposing mandatory life sentences for offenders convicted of manslaughter, necessarily eliminates sentencing discretion. This prevents judges imposing sentences that reflect the circumstances of each offender that comes before the court.

The death of any person, let alone a child, particularly in a manner that constitutes a criminal offence is a tragedy. However, to categorically punish all offenders sentenced for such offences in the same way could see excessively harsh punishment for certain offenders. Take, for example, a person convicted of ‘vehicular manslaughter’. The conviction could have come after causing a motor vehicle accident due to momentary inattention and as a result of that accident a child dies. Calls for ‘maximum sentencing’ for killing a child would see that person receiving the same sentence as a person who abducts and kills a child.

This is why mandatory sentencing is problematic and why sentencing discretion is so important.

Get help with drug charges from Bosscher Lawyers.

Help with drug charges and rehabilitation for you or your loved one

Over the last 4 years, Bosscher Lawyers have utilised their unique relationship with other organisations to assist drug offenders obtain the best possible results when sentenced by Queensland Courts.

When sentencing offenders, courts must take into account various factors. Importantly, courts look to the efforts an offender has made to address the issues at the heart of their offending behaviour. Courts look favourably upon offenders who have taken a proactive approach to addressing the issues that contributed to their offending, whether it be drug or alcohol addiction, mental illness or another concerns.

Bosscher Lawyers’ unique relationship with a well-known not for profit organisation enables us to provide clients with access to a ‘rehabilitation co-ordinator.’ Co-ordinators use their wealth of experience and knowledge to refer clients to a range of targeted support services. Through a personalised rehabilitation plan, clients are able to identify and begin to address issues specific to their offending. This targeted support not only assists clients in their personal development but also provides courts with definitive evidence of their rehabilitative efforts.

Bosscher Lawyers have represented many clients with a background of illicit substance abuse or other personal issues for sentencing before the District and Supreme Courts. The assistance provided by our ‘rehabilitation co-ordinators’ has proved to be a significant factor in these clients either avoiding prison time altogether or reducing the usual sentence. Our results speak for themselves.

It has often been commented upon by Judges the significant and impressive nature of our clients rehabilitative efforts, particularly those undertaken with the support of our rehabilitation strategy.

Should you or a loved one find themselves charged with a criminal offence and have an underlying personal issue to address, you should contact a member of Bosscher Lawyers to not only provide you with the best legal representation available but also access to the support required to address your personal circumstances.

Bikies

What are the Consorting Laws in Queensland?

According to a recent report by the LNP, only 27 bikies in Queensland have handed in their patches since the Labor government introduced its new organised crime laws in late 2016.

At that time, the Palaszczuk Government overhauled the state’s organised crime laws and made redundant much of the former government’s controversial bikie laws.

By way of summary, the legislation extended its powers of banning of outlaw motorcycle club members not just wearing their club colours in licensed premises, but all public places.

The legislation also replaced the anti-association provisions with a new offence, making it illegal for a person to consort with two or more convicted offenders if they have been previously warned by Queensland police not to do so.

This offence applies to adults, that is, people aged 18 years or over and does not apply to young people.

In relation to the definition of a “convicted offender”, the legislature deems that it is a person who has previously been convicted of an indictable offence, punishable by a maximum penalty of five or more years imprisonment. Alternatively, a “convicted offender” has been convicted of prescribed offences where the maximum penalty is under five years, in circumstances where they have been identified as being associated with organised crime.

The new consorting offence also allows Queensland Police to search a person they reasonably suspect has consorted, is consorting or is likely to consort with one or more recognised offenders.

Importantly, the consorting is not limited to a physical association. Accordingly, the laws are broad enough to encompass any kind of communication, in particular, phone, email or any type of social media. Furthermore, there isn’t a requirement that the consorting be linked to, or have any suspected link to, criminal activity in any way.

The Queensland laws draw heavily on the NSW consorting laws, that since their inception have had multiple reviews, namely one in 2014 and another in 2016. Both these reviews by the NSW Ombudsman found deficiencies in the way police were using the legislation.

If you have been charged with any offence under the new legislation, we highly recommend you seek legal advice.

Tim Meehan Brisbane Criminal Lawyer

Standing True to Legal Principle

The right to a fair trial is a cornerstone of the Australian judicial system and was squarely the focus of leading Australian criminal law firm, Bosscher Lawyers in representing Brett Cowan in his application to have Chief Justice Tim Carmody disqualified from hearing his appeal, citing a possible perception of bias, emanating from a meeting between Chief Justice Carmody and child protection advocate Hetty Johnston in April, during the appeal process.

Consequently, yesterday the Chief Justice withdrew from the matter.

Chief Justice Carmody had been sitting together on the case with Justice McMurdo and Justice Hugh Fraser, and their written decisions on the appeal have yet to be delivered.

Bosscher Lawyers’ Tim Meehan pointed out to a number of media outlets that his team only made the apprehended bias application after the bench raised the issue.

“Quite frankly this has got nothing to do with Hetty Johnston, it has nothing to do with Bravehearts,” Mr Meehan said.

He said the decision by Justice Carmody to withdraw from the case was very unexpected.

“Justice needs to be done according to law. It’s as simple as that.

“All we want for our client is for his matters to be dealt with in the correct way, and in the way that everyone else is entitled to have their matters dealt with.”

Read More

DNA Evidence

Queensland authorities confirm ‘miscode’ affects DNA evidence in criminal cases

In a colossal technical error, it has been found that DNA evidence has being bungled in dozens of Queensland crimes, including the murder of pregnant Logan woman Joan Ryther.

Queensland authorities confirmed the “minor miscode” had affected DNA likelihood ratios in 60 cases, prompting defence lawyers to raise doubts about other results.

“Clearly the code they have relied on historically has been faulty,” said high-profile lawyer Michael Bosscher, who is representing the accused in the Ryther case.

“We’re being asked to be assured that all of the faults have been rectified. It casts doubt across the board in relation to DNA probability statistics.”

Read More